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53 results

Page 1 of 3

  • Realistic ‘Realism’ and the High Court’s Political Role

  • Brian Galligan
  • Journal:
    Federal Law Review / Volume 18 / Issue 1 / March 1989
    Published online by Cambridge University Press:
    24 January 2025, pp. 40-49

  • I welcome the opportunity to respond to Jeffrey Goldsworthy’s article, “Realism about the High Court”, in which he criticises aspects of my account of the High Court’s political role in interpreting the Australian Constitution. My book, Politics of the High Court, sets out the functions that the Founders intended the Court to play — interpreting the Constitution and adjudicating high level disputes involving governments — and examines, within a historical context, how the Court has actually carried out those functions in major decisions and lines of interpretation of key sections of the Constitution. As I pointed out in the book, this is the stuff of ‘high’ politics: authoritatively determining the meaning of the Constitution which is the basic instrument of government; and in particular disputes deciding whether to overrule democratically elected governments.

Constitutional Conventions in Westminster Systems
  • Controversies, Changes and Challenges
  • Edited by Brian Galligan, Scott Brenton
  • Published online:
    05 August 2015
    Print publication:
    04 August 2015
  • Conventions are fundamental to the constitutional systems of parliamentary democracies. Unlike the United States which adopted a republican form of government, with a full separation of powers, codified constitutional structures and limitations for executive and legislative institutions and actors, Britain and subsequently Canada, Australia and New Zealand have relied on conventions to perform similar functions. The rise of new political actors has disrupted the stability of the two-party system, and in seeking power the new players are challenging existing practices. Conventions that govern constitutional arrangements in Britain and New Zealand, and the executive in Canada and Australia, are changing to accommodate these and other challenges of modern governance. In Westminster democracies, constitutional conventions provide the rules for forming government; they precede law and make law-making possible. This prior and more fundamental realm of government formation and law making is shaped and structured by conventions.

A Federal Republic
  • Australia's Constitutional System of Government
  • Brian Galligan
  • Published online:
    05 November 2011
    Print publication:
    01 January 1995
  • This provocative book, first published in 1995, argues that Australia is already a federal republic rather than a constitutional monarchy. It argues that by adopting a federal constitution in 1901 Australians ensured their status as a sovereign people. While the book does not deny the parliamentary and monarchic elements of the Australian system, it calls for a positive reassessment of the Constitution. Brian Galligan forcefully argues that the Australian Constitution has primacy over the other political institutions of the nation. The book considers fundamental issues that arise in discussion of the Constitution and federalism, including the role of the Senate, the possibility of a bill of rights, the way the High Court fits into the current system and the nature of governmental relations. This book will overturn the orthodoxies of much informed opinion and will challenge republicans and monarchists alike. Brian Galligan's unique perspective as a political scientist throws light on many aspects of federalism and will stimulate wide debate.

Citizens without Rights
  • Aborigines and Australian Citizenship
  • John Chesterman, Brian Galligan
  • Published online:
    22 August 2009
    Print publication:
    22 December 1997
  • This is the first comprehensive study of the ways in which Aborigines and Torres Strait Islanders have been excluded from the rights of Australian citizenship over the past 100 years. Drawing extensively upon archival material, the authors look at how the colonies initiated a policy of exclusion that was then replicated by the Commonwealth and State governments following federation. The book includes careful examination of government policies and practice from the 1880s to the 1990s and argues that Aboriginal people have been central to notions of Australian citizenship by virtue of their exclusion from it. It overturns many assumptions and misunderstandings, arguing that there was never any constitutional reason why Aborigines could not be granted full citizenship. The authors show that citizenship was an empty term used to discriminate systematically against Aboriginal people.

  • 3 - Is the Constitution to Blame?

  • John Chesterman, University of Melbourne, Brian Galligan, University of Melbourne
  • Book:
    Citizens without Rights
    Published online:
    22 August 2009
    Print publication:
    22 December 1997, pp 58-83

  • Summary

    The constitutional treatment of Australia's Aboriginal people is cryptic and enigmatic. The Commonwealth Constitution, which formally created the Australian nation and set up its federal system of government in 1901, mentioned Aboriginal people only twice in its 128 sections. Moreover, both instances were by way of exclusion: section 51 (26) excluded people of the Aboriginal race from the scope of the special race power given to the Commonwealth, while section 127 excluded Aboriginal natives from the census of national and State populations. The two sections read as follows:

    s. 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: …

    (xxvi) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

    s. 127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

    What are we to make of such ‘negativism of the Constitution’, as Geoffrey Sawer termed it? For many today, as in 1967 when overwhelming majorities of more than 80 per cent of the people in every State voted in referendum to delete both exclusionary clauses from the Constitution, the original constitutional treatment of Aboriginal people seems surprising and even shocking.

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